Memo could be key in Aracoma case

Lawrence Pierce
With members of the families of deceased miners Don Bragg and Ellery Hatfield in attendance, U.S. Attorney Chuck Miller announces the Dec. 23, 2008, plea agreement with Massey Energy's Aracoma Coal Co. over the January 2006 fire that killed Bragg and Hatfield. Seated from far left are widows Delorice Bragg and Freda Hatfield and their lawyers, Tonya Hatfield and Bruce Stanley.
Massey Energy CEO Don Blankenship speaks to reporters on April 6 in Montcoal about the disaster at his company's Upper Big Branch Mine.

CHARLESTON, W.Va. -- Four years ago, Massey Energy CEO Don Blankenship sent one of his top troubleshooters, Linton Stump, to investigate conveyor belt conditions at his company's Aracoma Alma No. 1 Mine in Logan County.

Stump checked it out and fired off a memo to Blankenship. The memo, dated Jan. 13, 2006, details overheated bearings, missing bolts and other conveyor belt problems.

The memo warned Blankenship that, while mine safety reports from Aracoma managers showed "everything was OK," Stump had found that "indeed it was not."

Six days later, on Jan. 19, a huge fire broke out on one of the Aracoma Mine's conveyor belts. Two miners, Don Bragg and Ellery Hatfield, weren't able to escape, and died deep inside the Logan County mine.

Today, 29 families are mourning the deaths of miners killed in a massive underground explosion on April 5 at another Massey operation, the Upper Big Branch Mine in Raleigh County.

Investigators are just beginning a complex inquiry to try to find out what caused the biggest U.S. coal-mining disaster in 40 years. Political leaders are planning their own examination, and are again promising mine safety reforms. National news outlets are poring over inspection reports and data, raising questions about Massey's corporatewide safety record.

On Thursday, President Obama weighed in, saying in a White House speech that the Upper Big Branch explosion was caused by "a failure, first and foremost, of management." Massey said Obama's remarks were "regrettable" and the president "has been misinformed about our record and the mining industry in general."

At the same time, a group of miners is quietly using the Linton Stump memo -- which has not before been widely seen -- to try to do something other investigations have not: hold the Massey Energy parent company directly responsible for the fatal fire at the Aracoma Mine.

In a little-noticed ruling in late January, Logan Circuit Judge Roger L. Perry said he would allow the miners to try to do just that.

"It could be argued that Mr. Blankenship was personally overseeing operations at Aracoma . . . " Perry wrote in a 15-page, Jan. 28 order that allows the miners to put the question to a jury. Trial is scheduled for mid-October.

'We got to get out of here'

On Jan. 19, 2006, the second shift was just getting started when the conveyor belts ground to a halt deep underground at Massey's Aracoma Mine near Melville, Logan County.

Foreman Michael Plumley called to the surface to find out what was wrong. The main belt was burning, he learned. The mine had to be evacuated.

"We got to get out of here," electrician Mike Shull remembers Plumley telling his crew.

During the evacuation, one group of miners ran into smoke in their primary escape tunnel. They had to try to find another way out. Two workers, Bragg and Hatfield, became separated from the group. They got lost and eventually succumbed to the heavy smoke.

After a 14-month investigation, U.S. Mine Safety and Health Administration investigators cited Massey's Aracoma Coal Co. subsidiary for "reckless disregard" of mine safety rules, including not performing required safety checks, failing to install a sprinkler system, and multiple ventilation and training violations.

The fire itself, investigators concluded, was caused by prolonged operation of a misaligned conveyor belt, along with the buildup of large spills of combustible coal and grease on the belt.

However, when the MSHA report was released in March 2007, then-agency chief Richard Stickler said the most serious problems were the removal of two ventilation walls, called stoppings, which allowed smoke to enter the escape tunnel.

In the months after the Aracoma deaths, reports continued to trickle out about a criminal investigation. U.S. Attorney Chuck Miller confirmed in April 2006 that such an inquiry was ongoing, but declined to say more.

State mine safety director Ron Wooten tried to strip numerous Aracoma foremen of their mining licenses, but was thwarted when the men refused to answer questions, citing the ongoing criminal investigation. During one mine safety board meeting in March 2007, lawyers for several foremen said their clients had been told they were "targets" of the inquiry or were "persons of interest" to federal prosecutors.

The wrongful-death case

In November 2008, lawyers, spectators and local news media crowded into a Logan County courtroom. A jury had started to hear testimony in the wrongful-death case filed against Aracoma Coal Co. and parent company Massey Energy. Widows Delorice Bragg and Freda Hatfield also sued Blankenship, in his capacity as Massey CEO.

Wrongful-death cases against employers are tough to win. Workers' compensation law gives workers' families death benefits, but also generally prohibits such lawsuits. To overcome that, workers have to show their employers had "deliberate intent" -- that they knowingly ignored safety rules that they knew could endanger lives.

The standard for suing other companies for wrongful death is not as tough. Still, to do so, workers must first link parent companies like Massey to direct management of the workplace and violations that led to deaths.

As part of an effort to do that, Bruce Stanley, a lawyer for the Aracoma widows, did a lengthy interview -- called a deposition -- with Blankenship in July 2008 at the Chief Logan Conference Center.

Among other things, Stanley asked Blankenship about the Linton Stump memo. Blankenship testified under oath that he knew the belts at Aracoma "had been bad" but that he "had sent someone there to fix it."

"I was operating under the impression that it had been brought to large enough attention that it would be OK, yes, I mean, I deal with hundreds of coal mines and thousands of people, so yes," Blankenship said, according to a transcript of his deposition.

After he received Stump's memo, Blankenship wrote on it, "Shouldn't we fire Carl White and Larry Gibson," referring to two Aracoma workers charged with checking belt conditions.

Blankenship said in his deposition that he "thought we should discipline, discharge or do something with the people who were perhaps not doing their part."

White was not fired, and was still working at Aracoma the day of the fire. Stanley said his lawsuit uncovered no evidence that Gibson was fired.

Fair 'by West Virginia standards'

During the trial, Stanley showed the Logan jury videotape of parts of Blankenship's deposition.

Jurors heard that Blankenship received mine-by-mine production reports every two hours, and insisted on detailed memos on everything from conveyor belt breakdowns to parts inventories.

They also heard Blankenship answer questions about the Stump memo.

That was on a Friday afternoon. On Monday morning, lawyers announced in court that they had reached a settlement during the weekend. Aracoma Coal would pay an undisclosed sum to the Bragg and Hatfield families. Claims against Massey and Blankenship would be dropped.

A few days later, Blankenship told a statewide radio audience that the undisclosed settlement amount was fair "by West Virginia standards," given what he called the state's "very liberal" court system.

About a month later, two days before Christmas in 2008, U.S. Attorney Miller held a news conference at the federal building in Charleston.

Prosecutors had reached a deal with Massey and its subsidiaries. The Aracoma Coal Co. subsidiary would plead guilty to 10 criminal mine safety violations and pay $2.5 million in fines. Aracoma would pay another $1.7 million in civil penalties, to settle the violations cited by MSHA. The total penalty, $4.2 million, was the largest government penalty ever in a coal-mining death case, prosecutors said.

As part of the deal, Miller agreed that prosecutors would not pursue charges against parent company Massey or any of its officers or employees. A joint statement from prosecutors and the company said the government did not have evidence that Massey "knew, approved, or acquiesced in" Aracoma's faking of escapeway drill logs, the only felony included in the plea agreement.

In mid-January, when U.S. District Judge John T. Copenhaver conducted a hearing to consider approval of the plea bargain, widow Delorice Bragg stood up in court and read a statement opposing the deal.

Bragg told Copenhaver that evidence in the widows' case "made it clear that Massey executives much farther up the line expected the Alma Mine to emphasize production over the safety of the coal miners inside.

"If Massey executives have done nothing wrong and bear no criminal responsibility for the fire that killed Don and Elvis, then why do they need the deal?" Bragg asked. "If they're innocent, they don't."

When he approved the plea deal in April 2009, Copenhaver called the nonprosecution agreement "unusual," but said it was up to prosecutors to make such decisions.

"The government informs the court that it lacks a case in that respect, and the court accepts the government at its word," Copenhaver said.

'Personally running the show'

Over the past two years, at least nine survivors of the Aracoma fire have waged their own court battle against Massey. They say they inhaled smoke from the fire, causing long-term health concerns, and say the experience has caused them serious emotional problems. The survivors are suing Aracoma Coal Co., and their lawyers also are trying to move up the corporate ladder to parent company Massey Energy.

Massey tried to have the case against the parent company thrown out. Massey's lawyers argued, among other things, that the Linton Stump memo did not show that Massey or Blankenship did anything wrong.

In legal filings, Massey lawyers say neither of the belts discussed in the memo were the one that caught fire.

"All mines contain conveyor belts," Massey lawyers wrote. "Conveyor belts are essential to move coal from the inside of the mine to the outside of the mine and eventually to the customer buying the coal.

"Consequently, the fact that upper management in the Massey companies kept abreast of problems with the belts is unremarkable," the lawyers wrote. "Indifference to the belts and associated problems would be noteworthy.

"How this memo can support a claim of directly liability for the Jan. 19, 2006, fire is simply beyond comprehension," Massey lawyers wrote.

Lawyers for the miners disagreed.

"Don Blankenship was aware of the belt problems at Aracoma and personally sent Linton Stump to assess the situation," they wrote. "It is obvious that Mr. Blankenship was ignoring the corporate structure and personally running the show at Aracoma."

Judge Perry, in his Jan. 28 ruling, found the question was "an issue of fact" that a jury should decide at trial.

'Safety, accountability and responsibility'

While the wrongful-death lawsuit and the Aracoma criminal case were making their way through state and federal courts, safety problems were on the rise at another Massey mine, in Raleigh County.

Between 2008 and 2009, citations at the Upper Big Branch Mine near Montcoal doubled. MSHA records show that agency inspectors issued 48 orders for "unwarrantable failure" to comply with safety rules in 2009 alone. The mine repeatedly was cited for serious ventilation violations and for accumulations of coal dust. Proposed fines tripled, to nearly $900,000 last year.

Then, at 3:02 p.m. on April 5, carbon monoxide alarms went off deep inside the mine. A huge explosion -- possibly an ignition of methane made worse by a buildup of coal dust -- ripped through the mine. Twenty-nine workers never made it out alive. Two others were injured.

In a preliminary report to Obama, Labor Secretary Hilda Solis said Upper Big Branch's rate of serious withdrawal orders was 19 times the national rate. Still, the report said, at least three other Massey mines had more total citations than Upper Big Branch.

"In short, this was a mine with a significant history of safety issues, a mine operated by a company with a history of violations, and a mine and company that MSHA was watching closely," the Labor Department report said.

Massey issued a response, saying the company "believes in safety, accountability and responsibility."

"We seek the truth in the ongoing investigation and are cooperating with federal and state agencies to determine the cause of the tragic accident at Upper Big Branch Mine," Massey said. "Unfortunately, some are rushing to judgment for political gain or to avoid blame."

The Bragg and Hatfield families are keeping up with news of the Upper Big Branch disaster. Last week, Stanley released a brief statement on their behalf:

"We were highly disappointed by the U.S. Attorney's agreement not to look upstream," the statement said. "We were concerned that the agreement sent a very dangerous message -- that Blankenship's micro-management style was OK, certainly that there was nothing the feds felt like they could do about it.

"The fear now, of course, is that the same circumstances we discovered at Aracoma may be about to resurface at Upper Big Branch."

Reach Ken Ward Jr. at or 304-348-1702.

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